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FEM 3106FEM 3106FEM 3106FEM 3106

TOPIC 8TOPIC 8TOPIC 8TOPIC 8: : : :

POLICIES POLICIES POLICIES POLICIES & LEGISLATIONS FOR & LEGISLATIONS FOR & LEGISLATIONS FOR & LEGISLATIONS FOR

WORKERSWORKERSWORKERSWORKERS

DR ROJANAH BT KAHARDR ROJANAH BT KAHARDR ROJANAH BT KAHARDR ROJANAH BT KAHAR

WORKWORKWORKWORK 2

� In general, jobs are activities performed to produce a product or service, such as cutting grass and selling cars. Jobs can be divided into three types, namely (paid work), (coerced work) and (unpaid work).

� Paid work is a job market, while the coerced work refers to the work done by force and it will affect the resulting output.

EMPLOYEREMPLOYEREMPLOYEREMPLOYER

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� Persons or organizations that offer employment to workers.

� Employees working for employers and has the power to control the form of services performed by employees.

� When employers offer employment to workers, the relationship between them is formed.

� The law governing the relationships between workers and employers are employment laws.

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� Employers are responsible for providing all equipment and facilities needed by the employee to perform his duties.

� The relationship between employer and employee is based on an employment contract that has been signed by the employee.

� Employment contracts contain all the terms and conditions related to employment.

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OCCUPATIONAL SAFETY & HEALTHOCCUPATIONAL SAFETY & HEALTHOCCUPATIONAL SAFETY & HEALTHOCCUPATIONAL SAFETY & HEALTH

� Safety for the employees: a policy that protects employees from accidents, injuries and threats related to working conditions, employment practices and environment. (Example: Fire and sexual harassment).

� Health for workers: a situation in which employees are free from disease related to physical, mental and social development of the working conditions, employment practices and the environment (eg, disease and poisoning).

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� Matters relating to occupational safety and health must be addressed by all employers.

� Occupational safety and health is important not only because of moral considerations and the law, but is also seen in economic terms.

� For example, employers had to bear the high cost when a misfortune happens to the employees.

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AGENCIES & ROLE

� Majlis Negara Bagi Keselamatan dan Kesihatan

Pekerjaan (MNKKP).

� Jabatan Keselamatan dan Kesihatan Pekerjaan

(JKKP).

� Institut Kebangsaan Keselamatan dan Kesihatan

Pekerjaan dan (NIOSH).

� Social protection measurements required by law to protect workers in the face of a possible such as:

� Disease,

� Loss of job,

� Death,

� Old age (retirement) or disabilities and

� Accident

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LEGISLATIONS RELATED TO

WORKERS

1. Akta Keselamatan dan Kesihatan Pekerjaan 1994

2. Akta Kilang dan Jentera 1967

3. Akta Pekerjaan 1955

4. Akta Kesatuan Sekerja 1959

5. Akta Hubungan Industri 1967

6. Akta Keselamatan Sosial Pekerja 1969

7. Akta Pampasan Pekerja 1952

8. Akta Kumpulan Wang Simpanan Pekerja 1991

9. Akta Pencen 1980

10. Akta Pencen Pihak-pihak Berkuasa Berkanun dan Tempatan 1980

OCCUPATIONAL SAFETY LAWS FOR

EMPLOYEES 10

� Employment Act 1955

� Employment Act 1955 (Amendment 2000 –

amended sections 31, 32. 60A. 60D, 63 and

69C) is the primary law that protects workers.

Examples: leave, allowances, promotion.

� General Order (Part C)

SOCIAL SECURITYSOCIAL SECURITYSOCIAL SECURITYSOCIAL SECURITY

� Workers exposed to occupational accident or disease.

� This unexpected incident could become a serious problem for individuals involved and their families who lost their income.

� Workers need protection and the form of social security such as financial guarantees and security for family survival.

� A compensation system established to protect the community from any suffering because of the occurrence of disasters in life.

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LAWS ON OCCUPATIONAL SAFETY IN

MALAYSIA 12

� Akta Keselamatan Sosial Pekerja 1969 (Akta 4)

� Akta Pampasan Pekerja 1952 (Akta 273)

� Akta Kumpulan Wang Simpanan Pekerja 1991

( Akta 1952)

� Akta Pencen 1980

� Akta Pencen Pihak-pihak Berkuasa Berkanun dan

Tempatan 1980.

THE EMPLOYEES SOCIAL SECURITY ACT

1969 13

� Enforced by the Social Security Organisation (SOCSO)

� SOCSO is astatutory body that reports to the Ministry of Human Resources.

� Scope: All industries in the private sector; all local workers earning less than RM 2,000 on their first appointment.

� Employers and employees must contribute.

EXCEPTIONS:EXCEPTIONS:EXCEPTIONS:EXCEPTIONS: 14

� Public sector employees: excluded financially from the Social Security scheme since 1983 because they are covered by the Pension Act and are entitled to medical benefits under the scheme of service.

� Foreign workers are not covered because the employer is required to purchase insurance for any liability on the employee as directed in the Order (Insurance) Workmen's Compensation (Foreign Workers Compensation Scheme) 1996.

� Other workers: domestic, tributer, military, police, prisoners or groups of workers not covered by the Act declared by notification in the Gazette.

EMPLOYEES PROVIDENT FUND ACT EMPLOYEES PROVIDENT FUND ACT EMPLOYEES PROVIDENT FUND ACT EMPLOYEES PROVIDENT FUND ACT

1991199119911991 15

� EPF Board - an organization with all members of workers and the employer is obliged to make monthly contributions to a fund (EPF).

� The main purpose of the Act is for ensuring that employees will not experience financial difficulties after retirement.

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� This Act applies to a Federal Officer, Officer of the Local Federal and State officers.

� It creates a form of compensation scheme is open to the members required to retire or die due to injury or illness due to exposure to certain hazards while performing their duties.

� The pension scheme was established by the government specifically to meet the following objectives:

� Give recognition and appreciation of the excellent service of a member with full loyalty, dedication and trust to the Government.

� Is a bond to the members so that they continue to serve the government.

� A maintenance guarantee to the members after their retirement from government service.

� To provide subsistence to those who are dependent on members who have died either in service or after retirement of government.

PENSION ACT 1980PENSION ACT 1980PENSION ACT 1980PENSION ACT 1980

STATUTORY AND LOCAL AUTHORITIES STATUTORY AND LOCAL AUTHORITIES STATUTORY AND LOCAL AUTHORITIES STATUTORY AND LOCAL AUTHORITIES

PENSIONS ACT 1980PENSIONS ACT 1980PENSIONS ACT 1980PENSIONS ACT 1980 17

� Applicable to Employees of Federal Statutory Bodies and State and Employees of the Local Authorities.

PENSIONS ADJUSTMENT ACT 1980PENSIONS ADJUSTMENT ACT 1980PENSIONS ADJUSTMENT ACT 1980PENSIONS ADJUSTMENT ACT 1980 18

� The Act provides that the adjustment is made to any pension or other retirement benefits received by pensioners and other recipients of retirement benefits arising from the review of the government salary scheme.

� This Act only applies to retirees and other retirement benefit recipients who are resident in Malaysia (section 1 (3)).

PROTECTION OF PENSION RIGHTSPROTECTION OF PENSION RIGHTSPROTECTION OF PENSION RIGHTSPROTECTION OF PENSION RIGHTS

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� Pension rights are protected by the Federal Constitution (Federal Constitution).

� This is reflected in Article 147:

� "The laws that apply to any pension, gratuity or other allowances such as the matter is referred to as an award given to a member of any public service or to his widow, children, dependents or personal representative is the law the force on the relevant day or any later law not less favorable to the person who granted the award”.

� However, pension, gratuity or pension benefits provided in the Pensions Act 1980 and Local Authorities Pensions Act 1980, is not an absolute right of a member. A member must meet the conditions provided for in the law that entitles him to receive retirement benefits.

RETIREMENT AND PENSION 20

� After the 12th of April 1991, the Employment Act 1955 has made changes so that workers can choose retirement pension scheme.

� Workers in the government sector are given two choices. to select either:

� (a) Scheme of the Employees Provident Fund (EPF)

� (b) or pension scheme.

PENSION SCHEMEPENSION SCHEMEPENSION SCHEMEPENSION SCHEME 21

� If members choose the pension scheme, they will be paid on a monthly basis after completion of service by a particular category.

� This scheme was introduced to recognize and show appreciation to the workers because they have discharged their duties with full dedication and trust to the government for a term of service.

� After the death of the member, the pension money will be handed over to the wife and children.

� Faedah Cuti Gantian- If a member does not take annual leave for 120 days, he'll get a commensurate amount of money instead.

EPF SCHEMEEPF SCHEMEEPF SCHEMEEPF SCHEME 22

� EPF Scheme was established to provide retirement benefits for workers based on the concept of savings.

� Every employee is required to keep 11% of monthly income in the EPF and the employer will contribute 12%.

� Both of these contributions will be savings for retirement of an employee.

� Members who have selected the EPF scheme can withdraw EPF money for retirement when they reach the age of 56 years.

� Withdrawal:

� Member reaches the age of 50.

� Buy or build a house / make loans for the purchase or construction of houses.

� Requires medical financing

FAEDAH CUTI GANTIAN (FCG)FAEDAH CUTI GANTIAN (FCG)FAEDAH CUTI GANTIAN (FCG)FAEDAH CUTI GANTIAN (FCG) 23

� Beginning November 2004, officers who chose the EPF scheme will get the benefit of a replacement leave (90 days) when he retired.

� Entitlement to 30-35 days leave a year, balance leave to be carried forward to next year: only 15 days a year can be brought to the FCG.

SEXUAL HARRASSMENT & SEXUAL HARRASSMENT & SEXUAL HARRASSMENT & SEXUAL HARRASSMENT &

WORKERSWORKERSWORKERSWORKERS 24

� The definition of sexual harassment is not limited to physical contact but also includes other actions involving the victims of psychological harassment.

� For example: � Touching, patting, pinching, rubbing.

� Indecent speech, staring, whistling or exceed the limit of acts.

� Insults or travesty, intended to insult and sexual in nature.

� Suggestions that sexual services provided will be rewarded, if rejected it will prevent from getting any reward.

� Display, and distribute tools or pornographic materials.

SEXUAL HARRASSMENT CASES (2000)SEXUAL HARRASSMENT CASES (2000)SEXUAL HARRASSMENT CASES (2000)SEXUAL HARRASSMENT CASES (2000)

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� Case A: A woman, Wong Yok Mooi filed a suit damages amounting to RM 110 million against a manager of Hock Hua Bank in Kajang (Yong You Min). Wong is the first woman in Malaysia who filed a civil suit after being sexually harassed. She has filed the suit in the Registry office of the High Court.

� Case B: Shima had experienced sexual harassment committed by a director (a foreigner) in the workplace. She has made a complaint to the employer in 1990 but her complaint was not entertained. Complaints continue to be made to the Industrial Relations Division, Ministry of Human Resources and then extended the case to the Ministry of Home Affairs. Employer has been instructed to conduct an investigation. Investigations were conducted in January 2001. After the State Immigration Department conduct a thorough investigation and found the complaint was justified, the director’s work permit has been terminated and the command to return to the country of origin has also been issued.

CODE OF PRACTICE ON THE PREVENTION AND ERADICATION OF

SEXUAL HARASSMENT IN THE WORKPLACE

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� Launched in August 1999.

� This code aims to provide guidance to employers on the establishment of mechanisms at the organizational level in order to prevent sexual harassment in the workplace.

� According to the Code, since the interference occurs in the workplace, it is appropriate and more effective if the actions taken by the organization itself to be able to combat harassment at an early date.

� The Code also encourages the implementation of policies that ensure a safe and healthy working environment for all employees regardless of status and are treated independently from all forms of harassment, humiliation and sexual intimidation.

� Statistics of sexual harassment cases from 1999-2011: 324 cases (received and completed).

� As of 2011, 1766 employers had a Code of Practice for the Prevention and Eradication of Sexual Harassment in the Workplace.

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CURRENT PROTECTION UNDER THE CURRENT PROTECTION UNDER THE CURRENT PROTECTION UNDER THE CURRENT PROTECTION UNDER THE

LAWSLAWSLAWSLAWS 28

� Employment Act 1955: S14 related to the termination of the contract for reasons including the offense of sexual harassment.

� Public Officers Regulations (Conduct & Discipline) 1993:

� Sexual harassment is an attempt closer to others sexually, or ask for sexual favors or sexual acts (oral, written or in any other way)

� Cause a reasonable person to feel offended, humiliated or intimidated.

� Behavior is not limited in the workplace or in working hours as long as it is damaging the reputation of public service.

� Penal Code:

� S377D: Outrages of decency

� S354: Assault or use of criminal force to a person with intent to outrage modesty.

� S509: Word or gesture intended to insult the modesty of a person.

� The three sections above apply to all people

everywhere whether in the workplace or otherwise.

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� Industrial Relations Act 1957, S.20: Any employee, including those covered under the Employment Act if complaint of offenses including sexual harassment has been made against them, and employers make decisions to terminate them, they still have the right to challenge the decision in the Industrial Court.

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BILL OF LAW ON SEXUAL HARASSMENT 2003

� NGOs’ efforts.

� Has been drafted by the Ministry of Women, Families & Community Development.

� Ask for opinions from related agencies.

� Agree and Don’t agree.

� Result: Amend existing laws rather than introduce

a new law.

� Efforts to draft a Sexual Harassment Act again

raised in 2011, after the amendments to the

Employment Act was tabled in parliament.

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EMPLOYMENT ACT 1955 (AMENDMENT) 2010

� Ministry of Human Resources on July 8, 2010 presented the first reading of the Employment (Amendment) Bill 2010 in Parliament.

� Among others introduced that: sexual harassment applies to all employees regardless of their salary.

� Also imposes a duty on employers to provide procedures to handle complaints, investigate and explain the findings of the investigation.

� Code of Practice on Sexual Harassment Prevention & Eradication is still relevant after changes made to the law.

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� On 1 Oct 2010, bill Employment (Amendment) Bill 2010 was opposed by the JAG (including EMPOWER, WAO, AWAM, WCC, & SIS).

� They argue that the following items should be included:

� The definition of sexual harassment shall be as set out in the Code of Practice,

� Tribunal set up to investigate allegations quickly and with minimum formality,

� The burden of proof is on the balance of probabilities, not beyond reasonable doubt,

� Establish a sexual harassment committee with gender balance in number consisting of those from the management and workforce to investigate complaints.

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COURT CASES ON SEXUAL HARRASSMENT

� S. Sivalingam lwn. Northen Telecom Industries Sdn. Bhd., Penang [1980] 1 ILR 96 : the allegation has not been proven as the court require corroborative evidence. The allegation is easy to make, but difficult to rebut and cast a stigma on the person accused.

� Pamol Plantations Sdn Bhd, Johor lwn. Lim Cheng Guan [1998] 1 ILR 410: in dismissing an employee for outraging modesty, the employer needs to satisfy himself that there are reasonable grounds for believing that the criminal act is committed.

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� Conclusions from the cases:

� The level of proof applicable to prove the sexual harassment in order to take disciplinary action is "on the balance of probabilities.“

� However it is also depends on the scenario of the case itself, especially when it comes to the behavior of a criminal nature.

� Party concerned shall be satisfied of the truth of the allegations, to weigh the evidence available, also taking into consideration the credibility of witnesses who gave evidence, and be careful if the evidence of the victim is not supported by other independent evidence.

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� From 2005 to 2008, 3,906 cases of sexual harassment, including rape and indecent have been reported to the Royal Malaysia Police (RMP).

� 27 cases of disciplinary action involving the public sector have been reported by the Public Service Department (PSD).

� Actual number of cases of sexual harassment among women is higher than reported because many victims still have a sense of shame and fear to bring the case to the authorities.

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EFFECTS OF SEXUAL HARRASSMENT EFFECTS OF SEXUAL HARRASSMENT EFFECTS OF SEXUAL HARRASSMENT EFFECTS OF SEXUAL HARRASSMENT

ON WORKERSON WORKERSON WORKERSON WORKERS

� Psychological stress and emotional instability, erratic physical health, depression, easily inflamed.

� From the aspect of the work, the victims tend to show decreased performance, absenteeism from work, arguments, and even stop working.

� In terms of social relationships, victims may be inclined to hang out, talk and interact with certain groups, or a clear attempt to avoid certain groups.

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EFFECTS OF SEXUAL HARRASSMENT EFFECTS OF SEXUAL HARRASSMENT EFFECTS OF SEXUAL HARRASSMENT EFFECTS OF SEXUAL HARRASSMENT

ON EMPLOYERSON EMPLOYERSON EMPLOYERSON EMPLOYERS

� Employee absenteeism, lower work productivity, which tarnished the reputation of the organization, workers lost the will to work, high employee turnover, the cost of hiring new employees, the cost of training new employees, the suit by the victim of sexual harassment, a decline of confidence on the organization's employees and others.

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ESTABLISHMENT MEDIA WATCH 39

� In March 2011, the ministry has organized a Roundtable Conference for the drafting of Sexual Harassment Act and the establishment of Media Watch.

� Media Watch intended as a watchdog over the media to monitor the activities, especially those showing negative images of women.

� To date, the ministry has yet to issue any statement on the matter.

CONCLUSIONCONCLUSIONCONCLUSIONCONCLUSION 40

� Social protection of workers is considered a form of protection that can help workers should they get an injury in the workplace or while going to work.

� Employees Provident Fund is a benefit for old age.

� Pension Scheme provides opportunities to employees who have rendered outstanding service.

� Maternity leave is a benefit granted to the wife and husband.

� Sexual harassment is an increasingly serious social disease.